The Interplay of Partition Actions and Probate Estates.

  1. Probate
  2. The Interplay of Partition Actions and Probate Estates.

When someone dies quite often the most important asset passed on to his or her heirs is the family home.

But when an inheritance consists of something like the family home, and there is more than one heir entitled to receive it, very often it cannot simply be divided up and portioned out to each beneficiary.

In situations like this, the solution is simply to sell the property and divide the money up appropriately among the beneficiaries.

But what if all the heirs don’t agree to sell the property?

Must you leave the house empty and abandoned, or allow one heir to live there while everyone else gets nothing?

No.\

Consider Bringing a Partition Action.

When several beneficiaries (often siblings) inherit the family home, it’s not always possible for them to agree on what to do with their inheritance. One sibling may want to move in and live there (rent free, of course and without buying the others out) while the others may want to sell.

This can create a lot of family conflict, drama, trauma, and expense.

When situations like this arise, there is a legal procedure for dividing up the property even if the other co-owners object. (Caveat: this does not apply to people who co-own real property as tenants by the entirety.)

In Florida, if a probate has been opened, Florida’s probate law allows the personal representative or any beneficiary to file for partition of the property.

If probate has not been opened, then a separate civil lawsuit bringing a partition action must be filed.

A partition action (either within or without probate) essentially asks the court to divide up the property fairly between the co-owners.

If the court finds that the property is indivisible and cannot be partitioned (divided) in kind, a partition action or petition can force the sale of the property. Thus, the probate court direct the personal representative to sell “ … any property that cannot be partitioned without prejudice to the owners and that cannot be allotted equitably and conveniently.”

Dividing up inherited property like the family home does not always go smoothly. Which is why you should have an experienced estate and probate lawyer by your side.

Protecting Your Family is Just a Phone Call Away.

Don’t leave planning for your future and that of your loved ones to chance. All it takes is one phone call to the Law Offices of Samantha J. Fitzgerald to ensure that your wishes will be followed, and your loved ones taken care of when you are gone. We expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well.  When you work with the estate planning attorneys at the Law Offices of Samantha J. Fitzgerald, you get more than just an estate plan: you get peace of mind. Call us at 954-580-3690 or email us at: [email protected] today.

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